Overview of the Tribunal

Establishment

The Native Title Act 1993 (Cth) (the Act) establishes the Tribunal as an independent body with a wide range of functions. The Act is, itself, a ‘special measure’ for the advancement and protection of Aboriginal peoples and Torres Strait Islanders (Indigenous Australian peoples). The Act is intended to advance the process of reconciliation among all Australians.

The Act creates an Australia-wide native title scheme, the objectives of which include:

• providing for the recognition and protection of native title
• establishing a mechanism for determining claims to native title, and
• establishing ways in which future dealings affecting native title (future acts) may proceed.

The Act provides that the Tribunal must carry out its functions in a fair, just, economical, informal and prompt way. In carrying out those functions, the Tribunal may take account of the cultural and customary concerns of Indigenous Australian peoples.

Functions and powers

Under the Act, the Tribunal, comprising the President and Members, has specific functions in relation to:

• mediating in native title proceedings, upon referral by the Federal Court of Australia (Federal Court)
• determining objections to the expedited procedure in the future act scheme
• mediating in relation to certain proposed future acts on areas where native title exists, or might exist
• determining applications concerning proposed future acts
• assisting people to negotiate Indigenous Land Use Agreements (ILUAs), and helping to resolve any objections to registration of ILUAs
• assisting with negotiations for the settlement of applications that relate to native title
• providing assistance to representative bodies in performing their dispute resolution functions
• reconsidering decisions of the Native Title Registrar not to accept a native title determination application (claimant application) for registration
• conducting reviews concerning native title rights and interests (upon referral by the Federal Court)
• conducting native title application inquiries as directed by the Federal Court, and
• conducting special inquiries under Ministerial direction.

The President is responsible for managing the administrative affairs of the Tribunal. The President is assisted by the Chief Executive Officer (CEO) and Principal Registrar of the Federal Court. The CEO and Principal Registrar may delegate his or her responsibilities under the Act to the Native Title Registrar, or staff assisting the Tribunal. Staff assisting the Tribunal are made available for that purpose by the Federal Court.

The Act gives the Registrar specific responsibilities, including:

• assisting people to prepare applications and to help them, and other persons in matters relating to proceedings in the Tribunal
• considering whether claimant applications should be registered on the Register of Native Title Claims
• giving notice of applications to individuals, organisations, governments and the public in accordance with the Act
• registering ILUAs that meet the registration requirements of the Act, and
• maintaining the Register of Native Title Claims, the National Native Title Register and the Register of ILUAs.

The President, Members and the Native Title Registrar

The President, other Members of the Tribunal and the Registrar are appointed by the Governor-General for specific terms of no longer than five years. The Act sets out the qualifications for appointment to, and respective responsibilities of, these offices.

Table 5.1 outlines Tribunal statutory office holders, at 30 June 2019.

Office locations

The Tribunal maintains offices in Brisbane, Cairns, Melbourne, Perth and Sydney.

The year in review

1 January 2019 marked 25 years since the commencement of the Act and the establishment of the Tribunal. The native title system continues to mature. Two events from the year are interesting indicators of this evolving maturity. First, in the course of the year the 200th Prescribed Body Corporate (PBC) was registered. While this reflects a positive outcome in the recognition of native title, many PBCs face significant challenges. In the reporting year, the Tribunal has regularly received requests for assistance with governance issues and internal disputes. The Tribunal provides assistance within the parameters of its existing statutory functions. If amendments proposed in the Native Title Legislation Amendment Bill 2018 are adopted, additional functions will be conferred on the Tribunal, allowing it further to assist PBCs in the management of their native title.

In connection with the proposed legislative amendments, the Tribunal has participated in a key reference group, facilitated by the Attorney-General’s Native Title Unit to review and provide input in connection with the proposed amendments.

A second indicator is the High Court‘s decision in Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 (Timber Creek Compensation Claim). The decision is a major milestone in native title as it is the first consideration of native title compensation by the High Court. It has led to a focus on compensation applications. The Tribunal has consulted with government, native title bodies and various interest groups on legal and procedural issues arising from this decision. There has been no immediate impact on actual workload for the Tribunal, but increased workloads are likely.

The President and the Native Title Registrar were appointed towards the end of the last reporting year. They have sought to focus on the Tribunal’s statutory functions.

Stakeholder engagement

A key strategic priority during the reporting period has been increased contact with stakeholders, particularly representative bodies, governments at all levels, peak bodies and prescribed bodies corporate.

The President, Members and Registrar have established a fresh engagement agenda, including development of a renewed working relationship with the Federal Court to ensure the most effective use of resources. A new Protocol was signed in order to facilitate the performance of our respective roles in the recognition of native title, and to build upon the close relationship between the Court and the Tribunal.

In order to identify the best options available to assist PBCs, the Tribunal engaged with the Office of the Registrar of Indigenous Corporations, and the National Native Title Council (NNTC). The Tribunal participated in NNTC workshops and PBC capacity-building meetings in Alice Springs and Melbourne, aimed at the development of training and education programs and in order to build strong governance structures in PBCs.

The Tribunal has facilitated an ‘on-country’ review of an ILUA, which had been an important component in the consent determination of a native title claim. The Tribunal undertook an audit of the identified outcomes in the ILUA, and is facilitating further negotiations between the parties, designed to ensure that outcomes identified in the ILUA are realised and relationships between the PBC and government agencies enhanced.

Education is vital for the understanding of native title and how it impacts on the broader community. The Tribunal conducts information sessions around the country to assist stakeholders in understanding their legal obligations and the need for compliance with the future act provisions of the Act. Specific stakeholder sessions were delivered in Kingscliff and Emerald. General future act education sessions for state government agencies were delivered in Cairns, Townsville, Rockhampton and Brisbane. These sessions covered the delivery of assistance, proposed amendments, and the proposed expanded dispute resolution function for the Tribunal.

In other states, the Tribunal delivered information sessions tailored to the needs of relevant stakeholders. In New South Wales, there was a strong demand for education assistance from local government. The commencement of the Crown Land Management Act 2016 (1 July 2018) and the filing of an expansive claim over the South Coast region resulted in heightened interest in matters relating to Crown land. The Tribunal facilitated a workshop in Bega for nine Shire Councils from the south coast of NSW. A further workshop, attended by over 30 local government officers from Shellharbour, Kiama, Wollongong and Illawarra Councils was conducted by the Tribunal. The workshop also provided an opportunity to engage with local councils concerning the Tribunal and Australian Local Government Association’s Local Government Project which is focused on understanding the current capacities of councils and their needs in relation to native title issues. A follow up workshop involving over 40 people was held in Wollongong.

The Tribunal has discussed with the South Australian Department for Energy and Mining, through its Stronger Partners Stronger Futures program, the State’s alternative ‘right to negotiate’ scheme and explored the ‘right to negotiate’ procedures used in other states under Commonwealth legislation.

In Western Australia, the President held a discussion forum around proposed changes to the Tribunal’s management of future act objections. The forum was attended by the State, representative bodies, mining and exploration companies and their representatives.

On 1 May 2019, the Tribunal introduced a new process for the management of Western Australian objection applications, applying to objections over future acts notified with a notification day on or after 1 May 2019. This is designed to expedite the resolution of such objections, thus improving, for all stakeholders, an important part of the native title system.

Service delivery

In response to many stakeholder requests, the Tribunal released an online Native Title Vision (NTV) style app, which makes it possible to search areas for, and report on historical applications. The app is a method of interrogating historical claimant applications over an area with no current claim in order to ascertain previous usage. In accordance with the Tribunal’s policy of making native title information freely available, an additional point of access was added for clients who use the GIS Open Data website. The same data viewed in NTV was made available in more formats for users to download and use in their own GIS systems. Additionally, this website acts as point of entry for those users who wish to use the Tribunal’s web map services in their own applications.

External factors

The Government had long signalled its intent to move forward on a range of proposed reforms to the Act. In October 2018, the Attorney-General and the Minister for Indigenous Affairs released exposure drafts of the Native Title Legislation Amendment Bill 2018 and the Registered Native Title Bodies Corporate Legislation Amendment Regulations 2018 for public comment.

The exposure drafts were informed by consultation on an options paper Proposed reforms to the Native Title Act 1993 (Cth), released on 29 November 2017, which included recommendations from the Australian Law Reform Commission’s report on Connection to Country, the Council of Australian Government’s Investigation into Land Administration and Use, and other recent reviews.

The proposed reforms were intended to improve the native title system for all parties, including by:

• streamlining claims resolution and agreement-making processes
• supporting the capacity of native title holders through greater flexibility around internal decision making
• increasing the transparency and accountability of prescribed bodies corporate (the corporations set up to manage native title) to the native title holders
• improving pathways for dispute resolution following a determination of native title, and
• ensuring the validity of s 31 agreements following the Full Federal Court of Australia’s decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10.

The exposure draft of the Native Title Legislation Amendment Bill 2018 canvassed a new dispute resolution function for the Tribunal. The Bill was introduced into Parliament on 21 February 2019. It progressed as far as a second reading in the House of Representatives, before Parliament was prorogued for the general election. Consequently, the Bill has lapsed but is expected to be re-introduced into Parliament before the end of 2019.

Tribunal reorganisation and efficiencies

The reorganisation of the Tribunal was completed and fully implemented during the reporting period, resulting in simpler and more efficient team structures aligned to the Tribunal’s core functions. Management roles have been rationalised, resulting in more direct reporting lines between staff, managers, the Registrar and ultimately, the President and Members.

Closer alignment with Tribunal core functions has permitted consolidation of a number of fragmented work activities into a single team, focused on the registration function. This has created a simpler, consistent and more effective supervision of applications registration and notification procedures. Efficiencies were achieved with improved timeframes for registration, as well as a reduction in the lag time in progressing a matter through to notification. Management of the three Registers became a single team responsibility, creating a number of improved practices. Steps have been taken to minimise the manual processing, and time taken to enter a determination on the National Native Title Register.

The reorganisation of the Tribunal led to the re-establishment of the Future Act team, with a view to more rigorously managing the progress of objection applications. In particular, the allocation of objection applications to Members has been streamlined and Members have closer and ongoing relationships with staff.

The Tribunal has also implemented a number of technical initiatives in its geospatial services, including:

• redesign of spatial analysis processes to be faster and more data efficient
• adoption of newer Desktop GIS technology allowing for faster processing capability, and
• use of web services to access and publish data reducing the load on internal systems.

Cultural acknowledgement

The Tribunal continued to build on its actions designed to foster an understanding of, and respect for Indigenous culture by:

• maintaining the Indigenous Advisory Group
• classifying all Tribunal positions as identified positions, so that all employees will have effective communications skills and an understanding of the issues affecting Indigenous Australian peoples
• meeting the Australian Public Service Commission guidelines, particularly in ensuring that Aboriginal and Torres Strait Islander selection criteria are in all job descriptions
• ensuring that, where possible, recruitment panels include an Indigenous panel member (at level of position or above) and requiring recommended applicants to provide Indigenous referees
• ensuring practices and procedures within the Tribunal are delivered in a manner that is consistent with the requirements of the Act, which is beneficial legislation for Indigenous Australian peoples, and
• ensuring that in any office redesign, culturally acceptable spaces are available for Indigenous staff.

These actions contributed to achieving an important goal for the Tribunal, namely increased Indigenous employment opportunities. Despite a low volume of recruitment, at the end of the reporting period the number of Indigenous employees had increased from four to nine, representing 15 per cent of all staff.

Other actions included training for staff in Indigenous dispute resolution and conflict management; recognising and supporting Reconciliation Week and NAIDOC. The Tribunal continues to support the Federal Court’s development of a new Reconciliation Action Plan.

The Tribunal's work in 2018-19

General Overview

Information about statutory functions and trends and quantitative data relating to services provided by the Tribunal and the Registrar is detailed below.

Functions of the Tribunal

Future acts

Overview

A primary function of the Tribunal is the resolution, by mediation or arbitration, of issues involving proposed future acts (primarily, in practice, the grant of exploration and mining tenements) on land where native title has been determined to exist, or where native title might exist.

As outlined in Table 5.2, the disproportion in numbers of objection applications between Western Australia and Queensland is, in part, due to differing attitudes between the relevant state departments concerning future act negotiations.

Expedited procedure objection applications and inquiries

Under s 29(7) of the Act, a government party may assert that the proposed future act is an act that attracts the expedited procedure (i.e. that it is an act which will have minimal impact on native title) and, as such, does not give rise to procedural rights to negotiate which would otherwise vest in native title parties. If a native title party considers that the expedited procedure should not apply to the proposed future act, it may lodge an expedited procedure objection application (objection application) with the Tribunal.

A total of 1231 objection applications were lodged during the reporting period, 303 more than in the previous year. The number of active applications at the end of the reporting period was 740. This was 28 per cent more than the previous year, but consistent with the higher volume of lodged objections. More than 300 objections were withdrawn after agreement was reached between the native title party and the relevant proponent. A further 204 objection applications were finalised by withdrawal of the tenement applications by the proponents.

There were 54 objection applications determined during the reporting period, a small increase from the previous year. The expedited procedure was determined to apply on 18 occasions, and on 36 occasions, the expedited procedure was determined not to apply.

Future act determination applications, negotiation, good faith requirements and inquiries

If a proposed future act does not attract the expedited procedure, the parties must seek to negotiate agreement to the proposed future act. Any party may request Tribunal assistance in mediating among parties in order to reach agreement. There were 46 requests made in the reporting period, over double the number made in the previous reporting period.

The Act prescribes a minimum six-month negotiation period. After that time, any party to the negotiation may lodge a future act determination application. During the reporting period, 14 applications were lodged, 15 fewer than in the previous reporting period.

The Act requires that the parties negotiate in good faith concerning the proposed future act. If there has been a failure to negotiate in good faith by a party, other than a native title party, the Tribunal has no power to determine the application. If any party asserts that negotiations in good faith have not occurred, the Tribunal will hold an inquiry to establish whether or not that is the case, before determining the application.

During the reporting period, there were three ‘good faith’ determinations. In two of these matters, the Tribunal was not satisfied the relevant parties did not negotiate in good faith and proceeded to determine the application. In the third matter, the Tribunal determined that good faith negotiations had not occurred. In that case, the parties were required to negotiate further before the matter could be brought back to the Tribunal for arbitration.

Fifteen future act determination applications were finalised during the reporting period. This outcome is consistent with the volume of applications lodged, but a 50 per cent reduction compared to the previous reporting period. In five cases, the Tribunal determined that the future act may be done. In two cases, it determined that the act may be done, subject to conditions. The remaining future act determination applications were either withdrawn or dismissed. Four applications were withdrawn following agreement between the parties.

Assistance in dispute resolution

Section 203BK(3) of the Act provides that a representative Aboriginal/Torres Strait Islander body may seek the assistance of the Tribunal in dispute resolution. In the reporting period, the Tribunal provided such assistance in three cases.

Other inquiries

In April 2019, the Honourable Justice Alan Robertson made orders directing an inquiry pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) and Subdivision AA of Division 5, Part 6 of the Act. The inquiry into five separate native title determination applications covered an area extending from Port Douglas to Cairns and environs and south to the Russell River in North Queensland. The orders provide for the appointment of the President, and Dr Paul Burke, a consulting anthropologist, as referees to inquire as to:

• the group or groups who held native title rights and interests in the area as at the first assertion of sovereignty
• the normative system of law and custom pursuant to which the landholding group/groups held rights and interests, and
• identification of apical ancestors.

The inquiry must report by 20 December 2019.

Functions of the Native Title Registrar

Claimant and amended applications: assistance and registration

Sections 190A–190C of the Act require the Registrar to decide whether native title determination applications (claimant applications) and applications for certain amendments to claimant applications, should be accepted for registration on the Register of Native Title Claims. To that end, the CEO and Principal Registrar provides the Registrar with a copy of each new or amended claimant application and accompanying documents filed in the Federal Court.

The Registrar considers each application against the relevant requirements of the Act. The Registrar may also undertake preliminary assessments of such applications, and draft applications, by way of assistance provided pursuant to s 78(1)(a) of the Act.

During the reporting period, the Registrar received 34 new claimant applications, nine less than the previous reporting year. In addition to new claims, the Registrar received 23 amended claimant applications. Most new and amended applications were filed in Queensland and Western Australia.

Although there was a reduction in the number of claims received by the Registrar, the volume of registration testing was high in the reporting period. There were 62 applications considered for registration, 10 more than the previous year. Of these, 29 were accepted for registration and 33 were not accepted.

During the reporting period, six applications were subjected to preliminary assessment.

One application seeking judicial review of a decision not to accept an application for registration, was filed with the Federal Court and was current at the end of the reporting period. Five requests for the Tribunal to reconsider a registration test decision were received and actioned in the reporting period.

Non-claimant, compensation and revised determination applications

Two modest, but notable trends emerged in the reporting period. The first relates to non-claimant applications, where for the first time since 2008–09, the Registrar received no Queensland non-claimant applications. This may be attributable to the Court’s findings in Pate v State of Queensland [2019] FCA 25.

The second trend relates to applications for revised determinations. Six applications were referred to the Registrar in the reporting period, the largest number in any one year to date. One in Western Australia and the remaining five in the Northern Territory. The five Northern Territory matters all relate to native title determinations made over pastoral leases.

The Registrar received no compensation applications during the reporting period.

Indigenous land use agreements: assistance and registration

Under ss 24BG(3), 24CG(4) and 24DH(3) of the Act, the Registrar may provide assistance in the preparation of ILUA registration applications. Often, this assistance takes the form of pre-lodgment comments upon the draft ILUA and the application for registration. During the reporting period, assistance was provided on 151 occasions, generally in the form of mapping assistance and the provision of related information.

Under the Act, parties to an ILUA (whether a body corporate agreement, area agreement or alternative procedure agreement) must apply to the Registrar for inclusion on the Register of ILUAs. Each registered ILUA, in addition to taking effect as a contract among the parties, binds all persons who hold, or may hold, native title in relation to any of the land or waters in the area covered by the ILUA.

A total of 1228 ILUAs are currently on the Register of ILUAs, the majority of which are in Queensland. Broadly, the ILUAs deal with a wide range of matters including the exercise of native title rights and interests over pastoral leases, local government activity, mining, state-protected areas and community infrastructure such as social housing.

The volume of decision making was high in the reporting year, with a total of 69 ILUAs considered for registration, 19 more than the previous year. Forty-one body corporate and 28 area agreement ILUAs were accepted for registration and entered in the Register. These include the six ‘South-West Settlement Indigenous Land Use Agreements’ (South West ILUAs) which were accepted for registration on 17 October 2018. Twelve applications seeking judicial review of that decision were subsequently filed in the Federal Court in March 2019. These proceedings are currently before the Full Court of the Federal Court exercising its original jurisdiction.

Notification

During the reporting period, 63 native title determination applications were notified, compared with 59 in the previous reporting period. Of the 63, 37 were claimant applications, 21 were non-claimant applications and five were revised determination applications.

A total of 57 ILUAs were notified during the period.

Other forms of assistance

Assistance in relation to applications and proceedings

Section 78(1) of the Act authorises the Registrar to give such assistance as he or she thinks reasonable to people preparing applications and at any stage in subsequent proceedings. That section also provides that the Registrar may help other people in relation to those proceedings. During the reporting period, such assistance was provided on 265 occasions. As in previous years, many of the requests were for the provision of geospatial products.

Searches of registers

Pursuant to s 78(2) of the Act, 1541 searches of registers and other records were conducted during the reporting period, a similar number to the previous reporting period.

The Register of Native Title Claims

Under s 185(2) of the Act, the Registrar has responsibility for establishing and keeping a Register of Native Title Claims. This register records the details of claimant applications that have met the statutory conditions for registration prescribed by ss 190A–190C of the Act. As at 30 June 2019, there was a total of 163 claimant applications on this register.

The National Native Title Register

Under s 192(2) of the Act, the Registrar must establish and keep a National Native Title Register, recording approved determinations of native title.

As at 30 June 2019, a total of 452 determinations had been registered, including 78 determinations that native title does not exist.

Map 1 shows registered native title determinations as at 30 June 2019.

The Register of Indigenous Land Use Agreements

Under s 199A(2) of the Act, the Registrar must establish and keep a Register of Indigenous Land Use Agreements, in which area agreements and body corporate and alternative procedure ILUAs are registered. At 30 June 2019, there were 1220 ILUAs registered on the Register of Indigenous Land Use Agreements.

Maps

The 452 registered determinations as at 30 June 2019 covered a total area of approximately 2,976,165 square kilometres or 38.7 per cent of the land mass of Australia and approximately 119,501 square kilometres of sea (below the high water mark). There were 13 conditional consent determinations; 11 in Western Australia and two in New South Wales that were still awaiting registration as at 30 June 2019. Upon registration, these applications will increase the area to about 3,122,309 sq km or 40.6 per cent of the land mass of Australia and approximately 129,439 sq km of sea (see Map 1).

Registered ILUAs cover about 2,534,182 square kilometres or 33.0 per cent of the land mass of Australia and approximately 39,755 square kilometres of sea (see Map 2).

Map 1: Determinations Map

Map 2: Indigenous Land Use Agreement Map

Management of the Tribunal

Tribunal governance

The President has statutory responsibility for the administration of the Tribunal. The President and Registrar set the strategic direction of the Tribunal and are responsible for its performance. During the reporting period, the President and other Members met regularly. The President and Registrar also met with senior managers, to review and discuss performance and operating capabilities.

Financial review

The Federal Court’s appropriation includes funding for the operation of the Tribunal. This funding is set out as sub-program 1.1.2 in the Court’s Portfolio Budget Statements. $8.492 million was allocated for the Tribunal’s operations in 2018–19.

Appendix 1 shows the consolidated financial results for both the Court and the Tribunal.

Table 5.4 presents the financial operating statement, summarising the Tribunal’s revenue and expenditure for 2018–19.

External scrutiny

Freedom of Information

During the reporting period, one formal request was made under the Freedom of Information Act 1982 (Cth) (FOI Act) for access to documents, which was withdrawn. The Tribunal complies with FOI Act requirements regarding publishing a disclosure log on its website. The disclosure log lists the information, which has been released in response to FOI access requests.

Accountability to clients

The Tribunal maintains a Client Service Charter (Commitment to Service Excellence) to ensure that service standards meet client needs. During the reporting period there were no complaints requiring action under the Charter.

Members' Code of Conduct

Members of the Tribunal are subject to various statutory provisions relating to behaviour and capacity. While the Registrar is subject to the Australian Public Service Code of Conduct, this does not apply to Tribunal Members, except where they may be, directly or indirectly, involved in the supervision of staff.

Tribunal Members have voluntarily adopted a code of conduct, procedures for dealing with alleged breaches of the code and an expanded conflict of interest policy. During the reporting period, there were no complaints under these documents.

Online services

The Tribunal maintains a website at www.nntt.gov.au. The website enables online searching of the National Native Title Register, the Register of Native Claims, and Register of Indigenous Land Use Agreements. Native title spatial information and data can also be accessed online through NTV.

Australian Human Rights Commission

Under s 209 of the Act, the Aboriginal and Torres Strait Islander Social Justice Commissioner must report annually on the operation of the Act and its effect on the exercise and enjoyment of human rights by Aboriginal peoples and Torres Strait Islanders.

The Tribunal continues to assist the Commissioner as requested.

Annexure

President's presentations

Member's presentations